Reasons for the legalization of Same sex relationship:

 Constitutional Point of View

Section 377 of IPC violates Fundamental Rights guaranteed under Part III of the Constitution

Article 14 of the Constitution provides us equality before law. The intention of this Article is that every person is equal in the eye of the law. Then why homosexuals are not treated equally with heterosexuals? This Article provides us equal protection of laws and says that the basis of the classification must have a rational or reasonable nexus with the object sought to be achieved by the legislation. However, in criminalizing homosexuality in sec. 377, the classification between natural sex and unnatural sex is that those sexual activities that are performed for procreation are natural and those that are not performed for procreation are unnatural. Thence, it labels all forms of non-procreative sexual acts as unnatural. The object that sought to be achieved by the legislation through this provision is to create a public code of sexual morality but this object does not have a reasonable and rational nexus with the classification of natural and unnatural sex.

The unreasonable classification in this provision is based on the fact that the main aim of any sexual activity is procreation. This classification seems to be unreasonable in present scenario as it took place in 1860 when any sexual activity that was not meant for procreation was considered a sin. At that time there was no concept of individuality. Individuals were attached with their caste, society, religion etc. They were not independent. Now the individuals become more independent and rational. For them, procreation is not the main aim of sexual activities. Moreover, homosexual activity can never be termed as unnatural. Modern understandings of psychiatry and psychology, no longer view homosexuality as a disease or a disorder. Thus, the very objective of the section is facile, unscientific and based upon prejudice alone. Therefore, sec. 377, which criminalizes homosexuality relying on the unreasonable classification based on the procreation, is an absolute violation of this Article.

Article 15 says that there shall be no discrimination based on sex. The intention of this Article is that no person shall be subject to any disability, liability, restriction or condition on the ground of sex or gender. Moreover, sec. 377 criminalizes the sexual relationship between two person of same sex i.e. homosexuals. Thus, this provision of IPC discriminates against the homosexuals because of their sexuality and therefore constitutes discrimination based on sexual orientation.

Article 21 of our Constitution prohibits the state from interfering with the private personal activities and personal liberty of the individual. The term personal liberty is a compendious term to include within itself all the varieties of rights that goes to make up the ‘personal liberties’ of a person. It would include the privacy and sanctity of a person’s home as well as the dignity of the individual. According to the Supreme Court of USA in Lawrence v. Texas liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining of sex. The central idea behind the concept of personal liberty and privacy is that the quest of happiness of the individual must be fulfilled. Homosexual conduct is a very personal conduct and they do it for the sake of happiness. It is just a way of pursuit of happiness, a way to achieve sexual happiness or desire. This Article also says that a State can deprive any person from his personal liberty and privacy according to the procedure established by law. Therefore, someone can say that Sec 377 can restrict homosexuals from their personal liberty and privacy. But in Maneka Gandhi,s case, it has been held that the State can deprive any person only then the procedure cannot be arbitrary, unfair or unreasonable. The procedure in Art. 21 must be right, just and fair and not arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all and the requirement of Art. 21 would not be satisfied. This provision of IPC is an arbitrary, unfair and unreasonable provision because it criminalizes homosexuals because of their infertility or unproductiveness that gives a very narrow sense of classification between homosexuals and heterosexuals. Thus, by criminalizing homosexuality in sec. 377, it restricts them to enjoy their right to personal liberty and privacy given in Article 21 and this procedure is arbitrary, unfair and unreasonable, therefore it is not a procedure at all.

The meaning and content of Fundamental Rights guaranteed in the Constitution are of sufficient amplitude to encompass all the facets of gender equality including same sex relationship. Moreover, sec. 377 criminalizes same sex relationship. Thus, this provision is not consistent with the Fundamental Rights and according to Article 13 of our constitution, which says that those laws, which are inconsistent with Fundamental Rights, must be void, sec. 377 of IPC is void. Not the whole section is void; one part of this section is void and after applying the doctrine of severability this provision of IPC must be amended.